Citation Nr: 0017424
Decision Date: 06/30/00 Archive Date: 07/05/00
DOCKET NO. 99-06 691 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for post traumatic
stress disorder (PTSD).
2. Entitlement to service connection for bipolar disorder.
ATTORNEY FOR THE BOARD
C.A. Skow, Counsel
INTRODUCTION
The appellant served on active duty in the U.S. Navy from
March 1964 to July 1966. His decorations include the Vietnam
Campaign Medal, the Vietnam Service Medal, and the National
Defense Service Medal. He was discharged under honorable
conditions.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from an October 1997 rating decision of the
Jackson, Mississippi, Department of Veterans Affairs Regional
Office (VARO).
We note that the appellant requested a hearing before a
member of the Board to present additional evidence and
testimony in support of his claims. However, he failed to
report, without good cause, for the scheduled June 1999
hearing and, to date, he has not presented additional
evidence to the Board. Accordingly, the Board will proceed
with a disposition of the claims.
FINDINGS OF FACT
1. The appellant avers that he has PTSD due to his Vietnam
service experiences. He did not respond to VARO's December
1996 request for detailed information concerning his claimed
in-service stressors, or Vietnam service experiences.
2. The appellant is not a combat veteran; he served aboard
the U.S.S. Ellison in 1965 as a fire control technician and
he reportedly provided the necessary targeting information so
that his ship could shell enemy positions in Vietnam. The
appellant received no combat medals or other awards
indicative of combat service.
3. Report of VA hospitalization dated October 1996 and VA
progress notes dated October 1996 to February 1997 reflect
diagnoses for PTSD, but there is no mention of service
related stressors in these medical records.
4. The appellant reported on VA PTSD examination in May 1997
that he had flashbacks "where he can see the shells landing
on the beaches at Vietnam and blowing up children and old
men."
5. PTSD and bipolar disorder were diagnosed on VA PTSD
examination in May 1997; the stressors cited by the examiner
on this examination were "has not been able to find
permanent jobs" since the appellant's 1996 prison release
and "combat experiences."
6. Credible supporting evidence that any claimed PTSD in-
service stressor actually occurred has not been presented.
7. Competent medical evidence has not been presented
relating the diagnosis of bipolar disorder to service.
CONCLUSIONS OF LAW
1. A well grounded claim for service connection for PTSD has
not been presented. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107
(West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999).
2. A well grounded claim for service connection for bipolar
disorder has not been presented. 38 U.S.C.A. §§ 1101, 1110,
1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant seeks service connection for PTSD and bipolar
disorder. Service connection may be granted, when the facts,
as shown by the evidence, establish that a particular injury
or disease resulting in chronic disability was incurred in
service, or, if pre-existing service, was aggravated therein.
38 U.S.C.A. § 1110 (West 1991 & Supp. 1999); 38 C.F.R.
§ 3.303 (1999). In the case of any disease diagnosed after
discharge, service connection may be granted when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d) (1999).
However, the threshold question to be answered in all cases
is whether the appellant's claim is well grounded; that is,
whether it is plausible, meritorious on its own, or otherwise
capable of substantiation. Murphy v. Derwinski, 1 Vet.App.
78 (1990); Epps v. Gober, 126 F. 3d 1464 (1997), adopting the
definition in Epps v. Brown, 9 Vet. App. 341, 344 (1996). If
a particular claim is not well grounded, then the appeal
fails and there is no further duty to assist in developing
facts pertinent to the claim since such development would be
futile. 38 U.S.C.A § 5107(a) (West 1991 & Supp. 1999).
Furthermore, a claim which is not well grounded precludes the
Board from reaching the merits of a claim. Boeck v. Brown, 6
Vet. App. 14, 17 (1993).
Generally, to establish a plausible claim, a veteran must
present medical evidence of a current disability; medical
evidence, or, in certain circumstances, lay evidence, of in-
service incurrence or aggravation of a disease or injury; and
medical evidence of a nexus or link between the claimed in-
service disease or injury and the present disease or injury.
Epps v. Gober, 126 F.3d 1464 (1997); Caluza v. Brown, 7 Vet.
App. 498, 506 (1995). Alternatively, a claim may be well
grounded based on application of the rule for chronicity and
continuity of symptomatology, set forth in 38 C.F.R.
§ 3.303(b) (1999). Savage v. Gober, 10 Vet. App. 489, 495-98
(1997).
In order to establish entitlement to service connection for
PTSD, there must be medical evidence establishing a clear
diagnosis of the condition, credible supporting evidence that
the claimed in-service stressor actually occurred, and a
link, established by medical evidence, between current
symptomatology and the claimed in-service stressor. 38 C.F.R.
§ 3.304(f) (1999).
According to the decision of the United States Court of
Appeals for Veterans Claims (hereinafter "Court") in Cohen v.
Brown, 10 Vet. App. 128 (1999), a well grounded claim for
service connection for PTSD requires the following: 1) a
clear diagnosis of PTSD; 2) in-service incurrence of
stressor, and 3) a causal nexus between the symptomatology
and the stressor. A clear diagnosis means an unequivocal
diagnosis of PTSD.
An appellant has, by statute, the duty to submit evidence
that a claim is well grounded. 38 U.S.C.A. 5107(a) (West
1991 & Supp. 1999). Where such evidence is not submitted,
the claim is not well grounded, and the initial burden placed
on the appellant is not met. See Tirpak v. Derwinski, 2 Vet.
App. 609 (1992). Evidentiary assertions by the appellant
must be accepted as true for the purposes of determining
whether a claim is well grounded, except where the
evidentiary assertion is inherently incredible. See King v.
Brown, 5 Vet.App. 19 (1993).
Forms DD-214 and DD-215 reflect that the appellant served in
the U.S. Navy. Service records do not show that was involved
in any campaigns or combat or that he received any combat
injuries. He was awarded the National Defense Service Medal,
the Vietnam Service Medal, and the Vietnam Campaign Medal; he
received no combat badges. His military occupational
specialty is not shown on the service records, but the
appellant reported he was trained as a fire control
technician, and service records show that he was received for
duty aboard the U.S.S. Ellison in late August 1965, where he
served until June 1966 when he was returned the Naval Station
in Norfolk, Virginia, for disciplinary action. Service
medical records, including treatment entries from the U.S.S.
Ellison and service separation examination, are negative for
psychiatric complaints or findings. However, these records
show that he appellant sustained a self-inflicted laceration
to the wrist during his confinement for disciplinary action
while in Norfolk, Virginia.
In 1989, the appellant filed a claim for service connection
for PTSD, averring that it was due to "Vietnam service."
The claim was denied because no evidence had been presented
showing a diagnosis for PTSD. The appellant renewed his
claim for service connection for PTSD in August 1996, along
with initiating a claim for an acquired psychiatric disorder
manifested by nerve and hallucinations. In December 1996,
VARO requested that the appellant provide detailed
information regarding the in-service stressful incident(s)
resulting in his claimed PTSD. This request, a letter sent
to the appellant's last known address of record, was not
returned by the post office to the VA as undeliverable and,
to date, the appellant has not provided the requested
information.
Report of VA hospitalization dated October 1996 and VA
progress notes dated October 1996 to February 1997 reflect
diagnoses for PTSD, but there is no mention of service
related stressors in these medical records. During
hospitalization October 1996, the appellant was treated for
rectal bleeding and first degree AV block. He received no
treatment or evaluation for PTSD during this hospitalization.
In May 1997, a VA PTSD examination was conducted. By
history, the appellant left 12th grade at age 17 because he
was having quarrels with his teachers and he decided to join
the U.S. Navy. He reported that he was trained as a fire
control technician and assigned to the U.S.S. Ellis [sic],
which was a Naval destroyer, for a period of 10 months. He
further reported that the ship "constantly shelled enemy
positions on the shore and his work involved finding the
range of the enemy targets and giving it to the ship's
[155mm] cannons." The appellant stated that, while aboard
ship, he became less sociable, angry, and frustrated, and
that he went AWOL when the ship returned to Norfolk,
Virginia, until he was picked up by the shore patrol. The
appellant alleges that a psychiatrist saw him in service, but
that he did not know if any diagnosis was made. After
receiving a discharge under honorable conditions, the
appellant worked shortly, but then began robbing drug dealers
of money and engaging in other criminal activities. He was
reportedly jailed a numerous occasions, totaling roughly 23
years. Most recently, he was released the Federal
Penitentiary in Marian, [sic] Illinois, in March 1996 having
served his full term and has been unable to secure more than
temporary employment.
On mental status evaluation in May 1997, the appellant
reported numerous psychiatric symptoms and reported that he
acted in a way that was "looking for trouble." He reported
that his hobbies were limited to reading and fishing. He
indicated that he fished every day for 3 months when he got
out of jail, and thereafter fished frequently until he
entered Domiciliary Care at the Biloxi VA Medical Center.
The examiner stated that the appellant had a "considerable
number of post-traumatic stress disorder symptoms, and never
talks about his war experiences or watches war movies." The
appellant reported that he had "intrusive thoughts four
times a week, nightmares four times a week, flashbacks about
three times a year where he can see the shells landing on the
beaches at Vietnam and blowing up children and old men." It
was noted that the appellant had high average intelligence.
The Axis I diagnoses were PTSD and bipolar disorder. He was
also diagnosed on Axis II with adult antisocial personality
behavior. His Axis IV stressors were cited by the examiner
as "has not been able to find permanent jobs" and "combat
experiences."
After carefully reviewing the evidence of record, the Board
finds that the appellant has not presented a well grounded
claim for service connection for PTSD and bipolar disorder.
While record shows a diagnosis for PTSD and bipolar disorder,
credible supporting evidence that the claimed PTSD in-service
stressor(s) actually occurred has not been presented, Cohen
supra., and competent medical evidence has not been presented
relating the diagnosis of bipolar disorder to service. See
Caluza supra at 506.
Regarding the claim for PTSD, as a threshold matter, the
Board finds that the appellant is not a combat veteran. He
does not aver that he was in combat, nor do the appellant's
service records demonstrate combat service in Vietnam.
Specifically, forms DD-214 and DD-215 do not show that he was
involved in any campaigns or combat or that he received any
combat injuries. While the appellant received the National
Defense Service Medal, the Vietnam Service Medal, and the
Vietnam Campaign Medal, he received no combat badges.
Therefore, as the appellant has not argued and the record
does not show that he is a combat veteran, the presumption of
the incurrence of in-service stressor does not apply. See
38 C.F.R. § 3.304(f) (1999).
The Board notes that the examiner reported "combat" as a
stressor in support of his diagnosis for PTSD and, possibly,
bipolar disorder, on VA PTSD examination in May 1997.
However, his conclusion that the appellant was in combat is
clearly based on his interpretation of uncorroborated
statements made by the appellant during the course of the
evaluation since it ignores the relevant service records
discussed above. Therefore, this reference to combat
stressors is not sufficient to establish that the appellant
engaged in combat with the enemy and afford the appellant the
benefit of the presumption of "stressor."
With respect to the "stressor(s)" claimed by the appellant,
the Board observes that it is difficult to ascertain
precisely the nature of the stressor(s) believed by the
appellant to have precipitated the onset of PTSD. This is
because he failed to respond to VARO's December 1996 request
for detailed information regarding his stressor(s) and
because he failed to report for a scheduled hearing, wherein
he may have described with greater detail the alleged
stressor(s) causing PTSD. Without detailed information
regarding the claimed stressor(s), verification of the
experiences or incidents is impeded, and the evidence
necessary to well ground the claim may not be obtained. The
duty to assist claimants in the development of their claims
is not a one-way street; but rather, claimants are expected
to comply with reasonable requests for information. See Wood
v. Derwinski, 1 Vet.App. 190 (1991).
We note that, in his original claim in May 1989, the
appellant reported that his "Vietnam service" caused PTSD,
but he did not elaborate on the circumstances, events, or
incidents that were stressful. He later reported on the May
1997 VA PTSD examination that he had flashbacks of seeing
"the shells landing on the beaches at Vietnam and blowing up
children and old men." The validity of this event, or
recurring event, during the appellant's service is highly
questionable in the Board's view as it is unlikely a U.S.
Naval destroyer could position itself close enough to shore
for crew members to visualize the target or the shore.
However, evidentiary assertions by the appellant must be
accepted as true for the purposes of determining whether a
claim is well grounded, except where the evidentiary
assertion is inherently incredible. See King v. Brown, 5
Vet.App. 19 (1993). In this case, the appellant has not
provided any evidence that the reported event occurred, apart
from is own statements of this event, and it is not clear
from the record whether the flashback reported by the
appellant is simply something he imagines occurred on the
beaches that were allegedly shelled from his Naval destroyer.
Ultimately, if this is indeed the claimed stressor causing
the appellant's psychiatric problems, credible supporting
evidence that this claimed stressor actually occurred has not
been presented, nor has competent medical evidence been
presenting linking this stressor to PTSD. See Cohen supra.
We note that the May 1997 diagnosis for PTSD was linked to
combat, which is not shown. Accordingly, the claim for
service connection for PTSD is not well grounded.
ORDER
Service connection for PTSD is denied.
Service connection for bipolar disorder is denied.
C.P. RUSSELL
Member, Board of Veterans' Appeals